A. An Exemplary Torts Case

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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Every day in Canada some of its citizens suffer harm as a consequence of personal, social, business, and governmental activities. The harm may be to their person, dignity, property, or wealth. Tort1law determines when the person who causes the harm must pay compensation to the person who suffers it. The answer to that question depends upon the nature of the conduct of the person who caused the harm, the nature of the harm suffered by the victim, and the circumstances in which the harm was inflicted.

This chapter addresses six matters. First, a typical torts case is considered to illustrate some of the characteristics of tort law and the nature of the civil litigation process. Second, reference is made to the origins of tort law. Third, consideration is given to the foundation elements of tort law. Fourth, reference is made to the objectives of tort law. Fifth, special attention is given to personal injury and fatality claims and how the remedies provided by the law of torts relate to other compensatory systems. Finally, consideration is given to the organization of tort law for the purposes of this book.

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Evaniuk v. 79846 Manitoba Inc.2is not a well-known torts case. It is not referred to in any of the treatises on Canadian tort law.3It does not make any special contribution to the development of the law of torts. It is, however, a good example of the kind of cases that Canadian lawyers routinely deal with and it provides a useful starting point for understanding the torts system.

The Evaniuk litigation arose from an incident in a Winnipeg bar. Ms. Evaniuk was sitting in the bar with her girlfriend. She noticed that her brother, who was sitting at an adjacent table, was kissing Ms. Fuerst, a waitress at the bar. Ms. Evaniuk warned her brother that he had better watch what he was doing because his wife would be arriving in a few minutes. Ms. Fuerst responded by throwing a full glass of liquid over Ms. Evaniuk. A heated exchange took place between the two women until two bouncers, employed by the bar, intervened. They took hold of Ms. Evaniuk, forcibly removed her from the premises, and threw her into the parking lot. She fell heavily and was injured.

1) Criminal Law and Tort Law Contrasted

Ms. Evaniuk’s first response to this incident was to go to the local police station to lodge a complaint. The bouncers may well have committed the crime of assault causing bodily harm. A criminal prosecution is, however, independent of any tort litigation,4and the characteristics of the criminal process are distinct from those of the tort process in three important ways.

First, the main function of the criminal law is to punish those who have committed offences under the Criminal Code.5The punishment is designed to prevent a repeat offence by the defendant and to deter other citizens from similar antisocial conduct. Consequently, the criminal process focuses primarily on the offender, his conduct, and, if he is found guilty, an appropriate punishment. Tort law provides a signifi-

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cant contrast. The focus of tort law is primarily on those who have suffered injury or damage as a consequence of either criminal or non-criminal conduct and their interest in receiving compensation for their losses.

Second, the administration of the criminal justice system is a community responsibility. Prosecutions are brought, almost exclusively, by a branch of government. Tort litigation is brought at the initiative, and at the expense,6of the person who has suffered the loss. The reason for governmental involvement in the administration of the criminal law is that the maintenance of public order and safety has a much higher social priority than the compensation of persons who have suffered injuries or damage.

Third, the burden of proof in criminal law is a heavy one. The prosecutor must establish the guilt of the accused beyond a reasonable doubt.7This high standard of proof is appropriate given the emphasis of the criminal law on punishment and the accused person’s possible loss of freedom upon conviction. The emphasis on compensation in tort law supports the use of the civil burden of proof that requires the plaintiff to prove her case on the balance of probabilities. The plaintiff must show only a 51 percent likelihood that the facts of the case are as she alleges.8It is not known whether the two bouncers in the Evaniuk case were prosecuted criminally but, in any event, a criminal prosecution could not provide a compensatory remedy to Ms. Evaniuk.9That must be sought under the law of torts.

2) The Tort Litigation

The most serious of the injuries that Ms. Evaniuk suffered were an aggravation to an existing back injury and an injury to her wrist. She retained a lawyer to assist her in recovering compensation for these...

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